or make appropriations from the treasury thereof, in aid of railroads or canals:

"Provided, That any surplus earnings of any canal, waterway or water power, may be appropriated or pledged for its enlargement, maintenance or extension; and,

"Provided, further, that the General Assembly may, by suitable legislation, provide for the construction of a deep waterway or canal from the present water power plant of the Sanitary District of Chicago, at or near Lockport, in the township of Lockport, in the county of Will, to a point in the Illinois River at or near Utica, which may be practical for a general plan and scheme of deep waterway along a route, which may be deemed most advantageous for such plan of deep waterway; and for the erection, equipment and maintenance of power plants, locks, bridges, dams and appliances sufficient and suitable for the development and utilization of the water power thereof; and authorize the issue, from time to time, of bonds of this State in a total amount not to exceed twenty million dollars, which shall draw interest, payable semi-annually, at a rate not to exceed four per cent per annum, the proceeds whereof may be applied as the General Assembly may provide, in the construction of said waterway and in the erection, equipment and maintenance of said power plants, locks, bridges, dams and appliances.

"All power developed from said waterway may be leased in part or in whole, as the General Assembly may by law provide; but in the event of any lease being so executed, the rental specified therein for water power shall be subject to a re-valuation each ten years of the term created, and the income therefrom shall be paid into the treasury of the State."

The proposal to appropriate and expend moneys of the United States for the improvement of waterways the title of which, under the facts above outlined, would remain in the State of Illinois or the Sanitary District of Chicago gives rise to the question above stated.

Your question calls for a statement of the power of the United States in respect to this waterway in advance of any amendment to the constitution of Illinois; that is to say,

in the absence of an amendment to the constitution of Illinois, as there can be no assurance that its constitution will be amended.

The State constitution forbids the sale or lease of the waterway. The meaning of this constitutional provision is a State question to be finally settled by the courts of the State. Giving it, as we must, a broad construction, since it forbids parting with the title to the property or with the possession and control even for a consideration in the form of rental, it would seem to forbid the complete relinquishment and surrender of possession and control.

The result is that the real question for decision is as to what power the United States has over this waterway, and what control it may exercise under its sovereign and constitutional powers, without the consent of the State or against its will.

The general subject of a continuous waterway connection between Lake Michigan and the Mississippi River has been under consideration for more than a century. Parts of the general route embraced in the proposed project have been held to be navigable waters of the United States for certain purposes. Escanaba Co. v. Chicago, 107 U. S. 678, 683 (Chicago River); Ex parte Boyer, 109 U. S. 629, 632 (Illinois and Michigan Canal); Economy Light and Power Co. v. United States, 256 U. S. 113 (Des Plaines River). In the last cited case the Supreme Court said (p. 124):

"The Desplaines River, after being of practical service as a highway of commerce for a century and a half, fell into disuse, partly through changes in the course of trade or methods of navigation, or changes in its own condition, partly as the result of artificial obstructions. In consequence, it has been out of use for a hundred years; but a hundred years is a brief space in the life of a nation; improvements in the methods of water transportation or increased cost of other methods of transportation may restore the usefulness of this stream; since it is a natural interstate waterway, it is within the power of Congress to improve it at the public expense; and it is not difficult to believe that many other streams are in like condition and require only the exertion of federal control to make them

again important avenues of commerce among the States. If they are to be abandoned, it is for Congress, not the courts, so to declare."

The power of Congress to make regulations concerning navigable waters is primarily derived from Article I, section 8, clause 3, of the Constitution, which provides that "The Congress shall have power * * * to regulate commerce with foreign nations, and among the several States, and with the Indian Tribes." Commerce includes navigation. Gibbons v. Ogden, 9 Wheat, 1, 189-190, 197.

It seems to me manifest that when the Illinois waterway shall have been completed, whether by funds of the United States or of the State of Illinois, and a system of continuous water transportation between Lake Michigan and the Mississippi River provided, that system, constituting a highway of interstate commerce, will be navigable waters of the United States and subject to the control of Congress for the purpose of navigation. The power of Congress to control navigable waters does not depend upon ownership by the United States of their beds or banks. South Carolina v. Georgia, 93 U. S. 4; Port of Seattle v. Oregon & Washington R. Co., 255 U. S. 56, 63.

The power of Congress extends to artificial waterways, such as canals, as well as to natural waterways. The fact that a waterway lies wholly within a State does not remove it from the control of Congress. The Daniel Ball, 10 Wall. 557; Escanaba Company v. Chicago, 107 U. S. 678. And it has been settled for some time that the admiralty jurisdiction of the courts of the United States extends to inland canals such as the one in question. Ex parte Boyer, 109 U. S. 629 (Illinois and Michigan Canal); The Robert W. Parsons, 191 U. S. 17 (Erie Canal). In Ex parte Boyer, supra, the Supreme Court said (p. 632) that admiralty jurisdiction attached "even though the canal is wholly artificial, and is wholly within the body of a State, and subject to its ownership and control; *" And in The Robert W. Parsons, supra, the Court said (pp. 26-27):

* *

"The only distinction between canals and other navigable waters is that they are rendered navigable by artificial means, and sometimes, though by no means always, are

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wholly within the limits of a particular State. We fail to see, however, that this creates any distinction in principle. They are usually constructed to connect waters navigable by nature, and to avoid the portage of property from one navigable lake or river to another; or to improve or deepen a natural channel; and they are usually navigated by the same vessels which ply between the naturally navigable waters at either end of the canal."

I see no reason why such artificial interstate waterways should not be within the power of Congress to regulate commerce through the control of navigation, as well as within the admiralty jurisdiction of the national courts. See United States v. Cress, 243 U. S. 316, 326. The Supreme Court has said that the purpose of the constitutional provision (Art. III, sec. 2) extending the judicial power of the United States to "all cases of admiralty and maritime jurisdiction " was to place the entire subject under national control "because of its intimate relation to interstate and foreign commerce." Panama R. R. Co. v. Johnson, 264 U. S. 375, 386.

In the case of Wisconsin v. Duluth, 96 U. S. 379, it appeared that the city of Duluth, in Minnesota, in order to improve its harbor, had constructed a canal which diverted waters from the St. Louis River. This diversion of waters injuriously affected the harbor of the city of Superior, in Wisconsin. In answer to an original bill brought by the State of Wisconsin in the Supreme Court to enjoin the diversion, the city of Duluth alleged, among other things, that the United States, acting through its legislative and executive departments, had approved the construction of the canal, had taken possession and control of the work, had appropriated and spent money on it, and adopted it as the best mode of making a safe and accessible harbor at the western end of Lake Superior. The Court, in holding that this answer was a complete defense to the bill, said (p. 387):

"Nor can there be any doubt that such action is within the constitutional power of Congress. It is a power which has been exercised ever since the Government was organized under the Constitution. The only question ever raised has been how far and under which circumstances the exercise of the power is exclusive of its exercise by the States. And

while this Court has maintained, in many cases, the right of the States to authorize structures in and over the navigable waters of the States, which may either impede or improve their navigation, in the absence of any action of the general government in the same matter, the doctrinne has been laid down with unvarying uniformity, that when Congress has, by any expression of its will, occupied the field, that action was conclusive of any right to the contrary asserted under State authority. The adjudged cases in this Court on this point are numerous.

*

"If, then, Congress, in the exercise of a lawful authority, has adopted and is carrying out a system of harbor improvements at Duluth, this court can have no lawful authority to forbid the work."

See also Bigham Bros. v. Port Arthur Canal & Dock Co., 59 Tex. Civ. App. 367, 373.

Returning, then, to your question, it is clear that the completed waterway, including the structures pertaining thereto, would be subject to "the Federal laws for the protection and preservation of navigable waters." The rights of the State in such waters are subject to the plenary powers of Congress, when asserted, in the regulation of interstate commerce.

Gilman v. Philadelphia, 3 Wall. 713;

South Carolina v. Georgia, 93 U. S. 4;

Willamette Iron Bridge Co. v. Hatch, 125 U. S.

1, 12-13;

Economy Light & Power Co. v. United States, 256 U. S. 113, 121;

Sanitary District of Chicago v. United States, 266 U. S. 405, 426;

New Jersey v. Sargent, 269 U. S. 328, 337.

The rule was stated by the Supreme Court in Gilman v. Philadelphia, supra, as follows (pp. 724-725):

"Commerce includes navigation. The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than